Monday, July 28, 2008

Open Access and the NIH

In 1978, in enacting Section 105 of title 17, Congress faced a choice about what to do with copyrighted works that result from government funding, including basic research funding of scientific, technical, and medical (“STM”) journal articles. One approach was simply to preclude any assertion of copyright, treating such works the same way as works created by government employees within the scope of their employment. That approach would have been simple to apply, but might have inhibited the publication of some STM journals, at a time when hard copy ruled as the method of distribution. Congress chose a middle approach, discussed here in the 1976 House Judiciary Committee report:, which begins by referring to the definition of “work of the United States government”:

A more difficult and far-reaching problem is whether the definition should be broadened to prohibit copyright in works prepared under U.S. Government contract or grant. As the bill is written, the Government agency concerned could determine in each case whether to allow an independent contractor or grantee to secure copyright in works prepared in whole or in part with the use of Government funds. The argument that has been made against allowing copyright in this situation is that the public should not be required to pay a ''double subsidy,'' and that it is inconsistent to prohibit copyright in works by Government employees while permitting private copyrights in a growing body of works created by persons who are paid with Government funds. Those arguing in favor of potential copyright protection have stressed the importance of copyright as an incentive to creation and dissemination in this situation and the basically different policy considerations applicable to works written by Government employees and those applicable to works prepared by private organizations with the use of Federal funds.

The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright in the writings generated by Government research contracts and the like; it can be assumed that, where a Government agency commissions a work for its own use merely as an alternative to having one of its own employees prepare the work, the right to secure a private copyright would be withheld. However, there are almost certainly many other cases where the denial of copyright protection would be unfair or would hamper the production and publication of important works. Where, under the particular circumstances, Congress or the agency involved finds that the need to have a work freely available outweighs the need of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 59 (1976).

With the advent of the World Wide Web, the National Institutes of Health, which provides about $30 billion in research grants, decided the public and other researchers would benefit from having STM articles it was funding placed in the National Library of Medicine’s PubMed Central on line archive. Acting responsibly, a NIH adopted a voluntary deposit policy several years ago, but participation was extremely low because STM publishers were opposed to it and the authors were not well informed about it. So, in the 2008 Labor-HHS Appropriations bill, Congress directed NIH to adopt a mandatory deposit policy. The STM publishers lobbied very hard against the bill, both in Congress and in the Administration (e.g., trying to convince HHS to withdraw support of the policy). Congress rejected the opposition, and enacted the mandatory deposit policy.

Under the policy, the grantee must ensure that a copy of the author’s final manuscript is electronically submitted to the PubMed Central archive, and that no later than 12 months after publication, the NIH may make the full text of the manuscript publicly accessible in PMC. The policy went into effect in April of this year, and with no apparent difficulty in compliance. As noted above, NIH provides about $30 billion in research grants, which amounts on average to about $400,000 per grantee. STM publishers require the authors/grantees to transfer the copyright as a condition of publication. The publishers manage the peer review process, but the peer reviewers generally aren't paid -- they are members of the community who do the peer review for free. Public institutions pay the salaries of the researchers and the hard costs of the building, lab, materials, energy etc., a very large amount. Publishers thus get the content for free, generally get the peer review for free, and don’t pay a penny toward the costs of the research. Under the current NIH policy, they have a 12 month period of exclusivity for individual articles, and a 95 year term of protection for the journal which they may also load up with all the DRMs their little hearts desire. Since time is usually of the essence in STM publishing, and subscriptions are sold by the year for a journal and not by individual article, publishers are provided with ample opportunity to recoup their investment and make a profit.

The American Psychological Association is reported to have to gone off the deep end on the issue. As reported in The Open Access News Blog on July 15, 2008:

The American Psychological Association may have the worst publisher policy to date for NIH-funded authors. Excerpt:

In compliance with [the NIH OA policy], APA will deposit the final peer-reviewed manuscript of NIH-funded research to PMC upon acceptance for publication. The deposit fee of $2,500 per manuscript for 2008 will be billed to the author's university per NIH policy....

Even after collecting the fee, the APA will not deposit the published version of the article, will not allow OA release for 12 months, will not allow authors to deposit in PMC themselves (and bypass the fee), will not allow authors to deposit in any other OA repository, and will not allow authors to retain copyright.

As a commentator pointed out on that blog:

Since there is virtually no cost associated with the mechanics of deposit itself, and the NIH policy allows an embargo on public availability of articles of up to one year in order to protect the traditional subscription market, it is hard to see what this policy is intended to accomplish other than to force an additional income stream out of the faculty authors who already provide the APA with free content. And there is heavy irony in the APA’s assertion that they can do this “as the copyright holder.” ...

The NIH policy has been raised most recently by a bill reported out by the Subcommittee on Labor, Health and Human Services, Education, and Related Services passed out of a provision for Fiscal Year 2009 appropriations which would continue the NIH policy. STM publishers are claiming that the issue is one that arises under the copyright law, and are attempting to have the Judiciary Committee intervene on their behalf. The claim that the NIH policy raises copyright issues is absurd. First, the policy does not reach the journal at all; only individual articles. Publishers’ investment is thus left untouched entirely. Publishers did not invest a dime in the individual articles, and thus have no investment to complain about. They still have a 12 month window of exclusivity for the articles, which is quite long enough to ensure that their only investment – in the journal – is protected. As reviewed at the beginning of this posting, Congress could have chosen to deny all protection to STM articles funded in whole or in part by the government. It is surprising by taking a less extreme, balanced approach, Congress is now being attacked by those who contributed nothing financially to the creation of the works.

Thanks, Stevan for the additional links. I found the links anemic in content, and basically can be reduced to this: the NIH policy is bad, therefore don't blame the APA, blame the NIH. First of all, it is not NIH's policy, it is Congress's. Second, Congress's policy is based on a judgment that publicly funded works should be deposited in public archives; that's why the author's own deposit archive doesn't cut it.

Whilst I don't disagree with the essence of your piece, I think there are two aspects that you (in common with others who support such mandates as this) miss is that publishers do invest considerable expense in the editorial process, and also risk losing sales if material is available free. To take the first point first. Most publishers fund editorial offices (for managing the article selection process) - they pay editors an honorarium (sometimes substantial), pay for editorial administrative staff, for expenses including expensive sophisticated manuscript tracking systems, and also fund meetings of editorial board members, and the like. For a large biomedical journal this could be a large amount (think $50k, $100k each year). The second point relates to the potential of lost sales. You (correctly) point out that in some areas journals are of little value a year after publication - but this is only true of fast moving areas - in many disciplines the archives are of great value - why else would publishers be investing large amounts in digitising them, and librarians insist on archives when they subscribe? Therefore, making articles free, in a centralised discipline-specific area (e.g. PMC) must risk loss of sales - and to continue in business, publishers need to protect themselves against this.

You are right that tax payers should not be required to pay double for the output of research. However my understanding is that funded research outputs should be submitted to the funding body (as evidence of adequately undertaken research) – why don't the taxpayers have access to this? "Articles" that are subsequently written have considerable "added value" - not only added by the authors, but also by the journal publishers – supporting the editorial selection of appropriate content within each journal, and the technological additions (design, linkage, metadata tagging, etc.). For authors, the reward to adding value is (hopefully) publication in a prestigious collection (=journal) that enhances their career and future research funding. For publishers their reward is financial remuneration. (And I am, for the moment, ignoring marketing, production, archiving, etc. that publishers also undertake). Equally, if the content deposited in PMC is different to that published (NIH only stipulates the final accepted article - but there may be subsequent changes before publication), then there may potentially be a version problem – hence the decision of publishers to support final-article deposition. The Wellcome Trust has recognised the inherent problems, and is therefore offering to fund publishers to reward them for adding their own value, and to ensure the continuation of a successful model of journal publishing.

However, finally, the issue of copyright is - as you imply - a red herring, and not the crux of the problem (in fact many journals - e.g. the BMJ - allow authors to retain copyright in their articles).

Thanks Bill. Your analysis is dead on, and it is important not to lose the history, especially because the compromise in 1976 assumed a regime of optional copyright that the funding agency could choose to waive. (Indeed, federal procurement regulations have not been updated to take account of automatic copyright.)

For those with an interest in the nitty gritty copyright details of the policy, seehttp://www.arl.org/sparc/advocacy/nih/copyright.shtml

For why this matters,http://carrollogos.blogspot.com/2008/02/nih-and-harvard-its-about-values.html

This is an important topic, one which extends far beyond government-funded research.

It's been often said that many of the traditional copyright industries, necessary in a bygone era where dissemination of copyrighted works required the manufacture and distribution of physical goods in which such works were fixed (journals, books, tapes, CDs), are now superfluous in the digital age--where truckfuls of dead trees are no longer required. Usually this is said of the record and motion picture industries.

Probably, though, this observation is most true for academic publishing--for myriad reasons:

1) Unlike recorded music, film, or even non-academic book publishing/journalism--authors are not compensated. (And the suggestion that copyright in academic papers is necessary to encourage research is outrageous and risible in the extreme--I know of zero scientists who engage in research in order to profit from the sales of journal articles--as if they could. Textbooks, on the other hand...)

2) Outside of peer review, publishers do little to assist the author in preparation of the work. And peer review (again, a volunteer enterprise) can easily be done outside of the rubric of a traditional journal publisher's refereeing process.

3) Finally--much of the "meat" of the work of scienctific papers isn't copyrightable anyway. Academic papers certainly are; as they contain the authors' prose intermixed with the actual research results. But the research results themselves are FTMP uncopyrightable ideas and data.

The emergence and success of open publishing systems such as CiteSeer aptly demonstrate the point--the traditional academic publisher isn't really necessary. However, old habits do die hard, and some disciplines still insist on a traditional academic publisher's "stamp of approval" before considering a paper worthwhile. And many publishers have responded to the threat to their business model much as Hollywood has--with ever-increasing restrictions on use and dissemination.(Others, to their credit, have realized that the gig is up--and that there's plenty of money in other works which are more prose-heavy, such as textbooks and the like).

Pippa, I agree with your discussion of the value added by journals for the journal: I was the editor-in-chief of a journal for 12 years, and ran it without an editor. I would like to think I added value of the sort you refer to. But the NIH -Congressionally mandated policy doesn't affect that value at all; the policy is directed only to the articles, which are written by the authors with no input or from or value added by the journal. Nor do disaggregated articles detract from the value created by the journal.

William, thanks for your comments. I would agree with you if NIH wanted the original articles written by authors - but they don't, they want the ones that editors/reviewers/publishers have invested time/effort/money into (to ensure quality of expression and discussion, and selection for publication). Therefore it could be argued they although they are funding research, they are requiring someone else to fund the value-added editing/selection processes whilst still mandating that the end-product (or almost-end!) is made freely available. (But I take your point on the "collection" aspect of a journal not necessarily being affected). Should they not fund the editorial/selection processes?

Thanks Pippa, I appreciate your points more now, but your arguments would be stronger, IMHO, if (1) the STM publisher paid for the peer review, and (2) actually edited the article. But even then, why do you disregard the money that NIH has sunk in? Why shouldn't you flip the analysis and require the publisher, as a condition of publishing the article and charging for the journal, to reimburse NIH for some of NIH's expenses? STM publishers seem quite exercised over articles they pay nothing for being made available to the public, but apparently have no qualms about making money off of research funded by the public. Their moral outrage and accounting seems curiously unidirectional.

Scott, in response to your post on academic papers. . . I recently read a great report by BioInformatics, LLC and PJA Advertising + Marketing on how scientists use social media to help them do their jobs, make purchasing decisions, collaborate with other scientists, and much more. In one section of their study, they ask scientists what they think the advantages of Web 2.0 is and one of the things they mention is that using social media to review their papers is, as they see it, an acceptable alternative to the 'peer-review' process.

Check out the website here: http://lifesciencesocialmedia.com/ , where the FREE ebook is available for download.

I have just stumbled on this blog while researching intellectual property law. I relished in the quality of your writing, the rhythm, the melody of your sentences. Truly poetic prose! I am sorry that the blog is no longer and wish I could read more from you. Thank you.

About Me

This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.